e Commerce Regulations

7/31/2019 e Commerce Regulations

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DTI Beginners Guide to the E-Commerce Regulations 2002

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BEGINNERS GUIDE TO THE

E-COMMERCE REGULATIONS 2002

You should read this guide if you.

advertise goods or services online (i.e. via the Internet, interactive television or mobiletelephone)sell goods or services to businesses or consumers onlinetransmit or store electronic content or provide access to a communication network.

Action you may need to take

If the Regulations apply to you, you may need to make textual or structural changes to themedium you use to advertise or sell your goods or services online, e.g. your website, inorder to comply with the new requirements.

Contents

Introduction Page 2

Whose law will apply to cross-border trade? Page 4

New information requirements Page 5

Limited liability for service providers Page 12

Other sources of information Page 13


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INTRODUCTIONWhat are the Electronic Commerce Regulations 2002?

The Electronic Commerce (EC Directive) Regulations 2002 (SI 2002 No.2013)(Regulations") transpose the main requirements of the E-Commerce Directive(2000/31/EC) into UK law.

What are the Regulations intended to achieve?

The purpose of the Directive (and therefore the Regulations) is to encourage greater use of e-commerce by breaking down barriers across Europe and boost consumer confidence by clarifying the rights and obligations of businesses and consumers.

It also seeks to promote the single market in Europe by ensuring the free movement of information society services (essentially all commercial online services) across theEuropean Economic Area (i.e. the 15 Member States of the European Union and Iceland,Norway and Liechtenstein).

Who do the Regulations apply to?

The Regulations may apply to you if you do any of the following:

advertise goods or services online (i.e. via the Internet, interactive television or mobiletelephone)sell goods or services to businesses or consumers onlinetransmit or store electronic content or provide access to a communication network.

What are the key features of the Regulations?

The Regulations include provision for:

the national law that will apply to online servicesthe information an online service provider must give a consumer, including discountsand offers in online advertising and how to conclude contracts onlinelimitations on service providers liability for unlawful information they unwittingly carry or store.

What is the legal status of this guide?

This guide to the Regulations is designed to help you to identify the steps you may need to


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take to ensure that you comply with their requirements and minimise any resultingcompliance costs.

This guide has no legal force but is intended to help you understand how the main featuresof the Regulations will impact on you. It is intended as a general overview only and shouldnot be taken as legal advice.

If you are affected by the Regulations you should refer to them for a full statement of therequirements and, in case of doubt, seek legal advice on questions of interpretation.

ReferenceThe official text of the Regulations is available in hard copy from normal suppliers and on the

HMSO website athttp://www.hmso.gov.uk/si/si2002/20022013.htm .

More substantive guidance on the Regulations is available on the DTI website at www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.html

What happens to businesses that do not comply?

Non-compliance with the Regulations could have serious implications for a business.Depending on the exact nature of the non-compliance, end users may

cancel their orderseek a court order against yousue you for damages for breach of statutory duty if they can demonstrate that they have suffered a loss as a result of your failure to comply with your obligations underthe Regulations.

On the 23 October 2002, the consumer-protection aspects of these Regulations weresubject to the Stop Now Orders (EC Directive) Regulations 2001. However, these havenow been subsumed into Part 8 of the Enterprise Act 2002.

This will permit the Director General of Fair Trading and Trading Standards Departmentsto apply to the courts for a Stop Now Enforcement Order if your failure to comply with theRegulations harms the collective interest of consumers. The courts will also have thepower to order you to publish corrective statements with a view to eliminating thecontinuing effects of past infringements.

If you fail to comply with a Stop Now Enforcement Order you may be held to be incontempt of court and could face a fine and/or imprisonment.

Who enforces the Regulations? 3
http://www.hmso.gov.uk/si/si2002/20022013.htmhttp://www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.htmlhttp://www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.htmlhttp://www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.htmlhttp://www.dti.gov.uk/industries/ecommunications/electronic_commerce_directive_0031ec.htmlhttp://www.hmso.gov.uk/si/si2002/20022013.htm


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The definition of enforcement authorities in the Regulations includes any body able toimpose a sanction for failure to observe or comply with any provision of UK law.Examples include Trading Standards Departments, the Office of Fair Trading and theIndependent Committee for the Supervision of Standards of Telephone InformationServices (ICSTIS).


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Whose law will apply to cross-border trade?The Regulations seek to liberalise the provision of online services in two key ways:

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first, they require UK-established service providers to comply with UK laws even if they are providing those services in another Member State. In other words, UK-established service providers will have to comply with UK law even if they areproviding their services to, for example, French recipients; and

second, they prevent the UK from restricting the provision of information society services from another Member State in the EEA.

These basic rules are subject to a number of qualifications and exclusions, which includein particular the freedom to choose the law applicable to a contract and contractualobligations concerning consumer contracts. In addition, the Regulations permit UK enforcement authorities (and in certain cases courts) to take proportionate measuresagainst given services on a case-by-case basis in limited circumstances (e.g. if suchrestrictions are necessary to protect public policy or consumers).

The Regulations do not deal with the jurisdiction of the courts (i.e. which court will hear across-border trading dispute) but a Guidance Note from the DTI is available on this issue.

ReferenceThe DTI website at

www.dti.gov.uk/ccp/topics1/ecomm.htm
http://www.dti.gov.uk/ccp/topics1/ecomm.htmhttp://www.dti.gov.uk/ccp/topics1/ecomm.htm


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NEW INFORMATION REQUIREMENTSThe new information requirements contained in the Regulations can be divided into threecategories, as seen below.

These requirements include providing your endusers with:

the full contact details of your businessdetails of any relevant trade organisations to which you belongdetails of any authorisation scheme relevant to your online business your VAT number, if your online activities aresubject to VATclear indications of prices, if relevant, includingany delivery or tax charges.

These requirements include providing your endusers with:

clear identification of any electroniccommunications designed to promote (directly

or indirectly) your goods, services or image (e.g.an e-mail advertising your goods or services)clear identification of the person on whose behalf they are sentclear identification of any promotional offers youadvertise e.g. any discounts, premium gifts,competitions, gamesclear explanation of any qualifying conditionsregarding such offersclear indication of any unsolicited commercialcommunications you send.

Commercialcommunications

Informationrequirements


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These requirements include providing your endusers with:a description of the different technical steps to be taken to conclude a contract onlinean indication of whether the contract will be filed by your business and whether it can be accessedclear identification of the technical means toenable end users to correct any inputting errorsthey makean indication of the languages offered in whichto conclude the contract.

Electroniccontracting


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Information Requirements

Does this category of the Regulations apply to you?

This category of Regulations applies to anyone who advertises or sells goods or servicesonline (e.g. via the internet, mobile phone or interactive television).

What must you do?

You must ensure you provide end users with:

the full name of your business your geographic addresscontact details, including an e-mail address, to enable direct and rapid communication with you.

Other information requirements

These requirements may apply depending on the nature of your business.

If you belong to atrade associationwhose register isopen to the public(e.g. CORGI)

Provide end users with

the name of the register your registration number or other means of identification on the register

If your onlineservice is subjectto an authorisationscheme (e.g. anauthorisation toadvertise or sellfinancial services)


the details of the relevant supervisory authority whichhas granted the authorisation

If your business ispart of a

profession whosequalifications arerecognised acrossEurope (e.g. theInstitute of CharteredAccountants)


details of any professional body or institution with which you are registereddetails of any professional titles you holddetails of the Member State in which such titles weregranteda reference to professional rules and how end userscan access them

If your onlinebusiness activitiesare subject to VAT


details of your VAT number


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If you refer toprices Provide end users witha clear indication of pricesdetails of any associated taxes and delivery costs


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Technological constraintsThe Government recognises that technological constraints (e.g. the 160-character limit ona mobile text message) may mean that you may not be able to provide the information by the same means by which you transact with your customers. The Government believesthat the information requirements outlined above will be met if the information isaccessible by other means. For example, if a customer purchases one of your products orservices via their mobile telephone, you should be able to satisfy the requirements if youput the relevant information on your website.

Temporary interruptions

Similarly, the Government believes that temporary interruptions to the availability of information that are essential (e.g. for maintenance purposes) or unavoidable (e.g. if yourcomputer system crashes because of a virus) will not place you in breach of your legalobligations.

Other relevant legislation

The information requirements outlined above are in addition to existing requirements,including those under the Consumer Protection (Distance Selling) Regulations 2000.These, amongst other things, require you to provide a description of your goods orservices, details of any after sales services and guarantees and details of your customers'rights to cancel orders.

ReferenceThe official text of the Consumer Protection (Distance Selling) Regulations is available in hard copy from normal suppliers and on the HMSO website at www.hmso.gov.uk/si/si2000/20002334.htm .
http://www.hmso.gov.uk/si/si2000/20002334.htmhttp://www.hmso.gov.uk/si/si2000/20002334.htm


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Commercial communications


This category of Regulations applies to anyone who actively promotes their goods orservices through any form of electronic communication (e.g. an e-mail advertising yourgoods or services).

What must you do?

Any form of electronic communication designed to promote your goods, services or image,such as an e-mail advertising your goods or services, must:

be clearly identifiable as a commercial communicationclearly identify the person and/or organisation on whose behalf it is sent.

Other requirements

These requirements may apply depending on the nature and content of your electroniccommercial communications:

If your electronic

commercialcommunicationscontain discounts,promotional offers,premiums, gifts,promotionalcompetitions or games

You must

clearly identify them as suchensure that any qualifying conditions for such offers,promotions or games are easily accessible andpresented clearly and unambiguously.

If you sendunsolicited commercial

communicationsby e-mail (e.g. ane-mail advertisingyour goods or services which issent to a recipientwho has not

requested it) *

You must

ensure that recipients are able to identify them as suchas soon as they receive them


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* Possible ways of meeting this requirement include placing the words unsolicitedadvertisement or "unsolicited commercial communication" in the title of the e-mail. Thepurpose of this requirement is to ensure that recipients or their Internet service providerscan block or delete the e-mail without the need to open and read it.

The definition of commercial communications in the Regulations does not cover domainnames and e-mail addresses themselves, independent audits of your products, statutory reports or reports compiled by independent regulators. Certain specific types of communications, such as mobile text welcome messages and electronic greetings cards,may not be designed to promote your business and may not fall within the definition.Such matters of interpretation will be addressed on a case-by-case basis by the relevantenforcement authority.

Other relevant legislation

The Regulations do not define what is meant by 'unsolicited commercial communications by e-mail', but mobile text messages are not considered to be within the scope of thisrequirement.

The Information Commissioner, however, treats such messages as calls for the purposesof the provisions regarding unsolicited direct marketing in the Telecommunication (DataProtection and Privacy) Regulations 1999; you should refer to these Regulations for a fullstatement of those requirements.

These Regulations will be revoked and replaced with effect from the 11 December 2003 by the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Key requirements include:

opt-in consent rules for e-mail marketing to individual subscribers; andrequirements to provide information and an opportunity to refuse cookies andsimilar Internet tracking devices, if these are used on websites.

ReferenceFurther information on these Regulations and issues surrounding them are available at

www.dti.gov.uk/industries/ecommunications/directive_on_privacy_electronic_communications_200258ec.htm
http://www.dti.gov.uk/industries/ecommunications/directive_on_privacy_electronic_communications_200258ec.htmhttp://www.dti.gov.uk/industries/ecommunications/directive_on_privacy_electronic_communications_200258ec.htmhttp://www.dti.gov.uk/industries/ecommunications/directive_on_privacy_electronic_communications_200258ec.htmhttp://www.dti.gov.uk/industries/ecommunications/directive_on_privacy_electronic_communications_200258ec.htm


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Electronic contracting


This category applies to anyone who enables end users to place orders online.

What must you do?

You must provide end users with the following information in a clear, comprehensive andunambiguous manner prior to an order being placed:

the different technical steps to follow in order to conclude the contract so that endusers are made aware of what the process will involve and the point at which they willcommit themselves to the contract * whether or not the concluded contract will be filed by you and whether it will beaccessible *the technical means for identifying and correcting input errors made by an end userprior to placing an order so that end users know how to correct any mistakes they make * the languages offered for the conclusion of the contract. *

If you subscribe tocodes of conduct

You must

supply details of any relevant codes of conduct anddetails of how end users can access them. *

(The Government believes that the codes in questionare those relevant to the particular order and not to

your business as a whole.)

If you supply endusers with theterms and

conditionsapplicable to their contract

You must

make them available in a way which allows them to

store and reproduce them.(You should be able to satisfy this requirement if endusers are able to save the terms and conditions ontotheir computer and subsequently print them out.)


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If an end user places an onlineorder with you

You mustacknowledge receipt of the order without undue delay and by electronic means * make available appropriate, effective and accessibletechnical means which will allow them to identify andcorrect input errors prior to the placing of the order. *

The Regulations state that the order and the acknowledgement of receipt are deemed tohave been received when the parties to whom they are addressed are able to access them.Receipt of the order need not be acknowledged by the same means used by your customer

to place their order

* These requirements do not apply to

online transactions between two businesses (i.e.B2B transactions) if both partiesagree to opt out of themcontracts concluded exclusively by exchange of e-mail or by equivalent individualcommunications.


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Limited liability for service providersThe Regulations limit the liability of service providers who unwittingly carry or storeunlawful content provided by others in certain circumstances. You should refer toRegulations 17 - 22 for a full statement of the requirements you will have to meet in orderto qualify for these limitations and in case of doubt you should seek legal advice on suchissues.

ReferenceThe official text of the Regulations is available in hard copy from normal suppliers and on theHMSO website athttp://www.hmso.gov.uk/si/si2002/20022013.htm .
http://www.hmso.gov.uk/si/si2002/20022013.htmhttp://www.hmso.gov.uk/si/si2002/20022013.htm


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OTHER SOURCES OF INFORMATIONDTI

You can contact the DTI at:Department of Trade and Industry International CommunicationsBay 202151 Buckingham Palace RoadLondon SW1W 9SS

Tel: (020) 7215 1853 Fax: (020) 7215 4161 E-mail: [email protected]

Trading Standards Offices

You will find the address and telephone number of your local Trading StandardsDepartment for England, Scotland or Wales in the telephone book under "Local Authority"or on the Internet by visiting www.tradingstandards.gov.uk and entering your postcode.

The address for Northern Ireland is:Trading Standards ServiceDepartment of Enterprise, Trade and Investment176 Newtownbreda RoadBelfast BT8 6QSTel: (028) 9025 3900 Fax: (028) 9025 3953 E-mail: [email protected]

You can contact the Office of Fair Trading through its website, www.oft.gov.uk , or at:Office of Fair TradingFleetbank House2-6 Salisbury SquareLondon EC4Y 8JXTel: (020) 7211 8000 Fax: (020) 7211 8800 E-mail: [email protected]

Her Majestys Stationery OfficeTo obtain copies of relevant Acts of Parliament and Statutory Instruments mentioned inthis guide, you should contact Her Majestys Stationery Office (HMSO) at their websiteaddress: www.hmso.gov.uk , or phone HMSOs Regulations Unit on 020 7276 5216.
mailto:[email protected]://www.tradingstandards.gov.uk/mailto:[email protected]://www.oft.gove.uk/mailto:[email protected]://www.hmso.gov.uk/http://www.hmso.gov.uk/mailto:[email protected]://www.oft.gove.uk/mailto:[email protected]://www.tradingstandards.gov.uk/mailto:[email protected]

Documents

e Commerce Regulations